CHANG YAN LIN v. WILKINSON (2021)

SUMMARY ORDER

Petitioner Chang Yan Lin, a native and citizen of the People's Republic of China, seeks review of a March 6, 2019, decision of the BIA denying his third motion to reopen his deportation proceedings. In re Chang Yan Lin, No. A073 036 406 (B.I.A. March 6, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the BIA's denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). The BIA did not abuse its discretion in denying Lin's motion to reopen. It is undisputed that Lin's 2018 motion was untimely and number barred because the BIA affirmed Lin's deportation order in June 2002 and he filed two prior motions to reopen. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see also 8 C.F.R. § 1003.2(c)(2). Lin's approved visa petition and purported eligibility to adjust status do not implicate an exception to the time and number limitations. See Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (holding “that untimely motions to reopen to pursue an application for adjustment of status ․ do not fall within any of the statutory or regulatory exceptions to the time limits for motions to reopen before the Board”). Accordingly, the only remaining basis for reopening was the BIA's authority to reopen sua sponte despite the time and number limitations. See 8 C.F.R. § 1003.2(a); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood's untimely motion to reopen was not excused by any regulatory exception, his motion to reopen could only be considered upon exercise of the Agency's sua sponte authority”). However, the BIA's decision not to exercise that authority is “entirely discretionary” and beyond the scope of our review. Ali, 448 F.3d at 518. Lin's res judicata arguments are not properly before us because he did not assert a res judicata claim before the agency. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (generally requiring issues to be raised before the BIA); see also Totalplan Corp. of Am. v. Colborne, 14 F.3d 824, 832 (2d Cir. 1994) (“Because res judicata is an affirmative defense, it should have been asserted as soon as it was available ․ Appellees’ failure to raise res judicata until appeal constitutes waiver of that defense.”).

For the foregoing reasons, the petition for review is DISMISSED. All pending motions and applications are DENIED and stays VACATED.